By ROBERT MCCLURE, SEATTLE POST-INTELLIGENCER REPORTER

Published 10:00 pm, Wednesday, June 29, 2005

If your Independence Day weekend plans involve a trip to the hardware store or home and garden section, take note of warnings to go easy on pesticides and give salmon a break.

An appeals court yesterday upheld a federal judge's 2004 ruling requiring warning signs where pesticides are sold in Washington, Oregon and California. About two dozen still are restricted, including 15 in Seattle and the Puget Sound area.

"This is a terrific victory for salmon and everyone who lives in the Northwest, because salmon are part of our lives here, and we all want clean water," said Amy Williams-Derry, a lawyer with the law firm Earthjustice, which represented several environmental groups in the case. "This goes a long way toward getting the Environmental Protection Agency to limit the use of pesticides."

EPA spokeswoman Enesta Jones said the agency would have no immediate comment because it had not had a chance to review the ruling.

Environmentalists persuaded U.S. District Judge John Coughenour in Seattle to ban use of 54 pesticides within 60 feet of salmon-bearing streams, lakes and other bodies of water. Since then, the EPA has taken steps to allow use of 30, but 24 remain restricted, said Heather Hansen, executive director of Washington Friends of Farms and Forests.

Coughenour ruled that the EPA had failed, when approving use of the pesticides, to check with the National Marine Fisheries Service on how they were likely to affect salmon protected under the Endangered Species Act.

"Who's getting hurt? Family farmers. We feel the wrong people are bearing the brunt of the punishment," said Hansen of the farm and timber group. "They did everything they were supposed to do. They followed the law, but they're suffering because two federal government agencies didn't talk to each other."

Environmentalists, though, say the case points up systemic flaws in the way the federal pesticide and endangered-species laws have been applied nationwide. The EPA has argued that it was doing as it was told by the Federal Insecticide, Fungicide and Rodenticide Act.

However, the three-judge panel from the 9th U.S. Circuit Court of Appeals, which upheld Coughenour's ruling, said the pesticide law weighs costs and benefits of using pesticides, while the Endangered Species Act gives protected animals the "highest of priorities in assessing risks and benefits."

"An agency cannot escape its obligation to comply with the (Endangered Species Act) merely because it is bound to comply with another statute that has consistent, complementary objectives," said the appeals court, which is based in San Francisco.

Jay Vroom, president of CropLife America, a pesticide trade group, said the ruling was a disappointment that would pose a "further economic burden to our farm customers."

Farmers aren't the only ones affected, though.

Coughenour's ruling required special notices at stores that say, "SALMON HAZARD. This product contains pesticides that may harm salmon or steelhead. Use of this product in urban areas can pollute salmon streams."

The EPA said that by requiring that warning, Coughenour's ruling unnecessarily impinged on the agency's authority. But the appeals court rejected that argument.

"If you're on one of those (covered) waterways, this applies to you, too," Hansen said. "You don't treat your lawn. You don't treat your fruit trees. You don't have a lawn service come if they use any of these products."